This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Brian Scott Antos,




Filed December 5, 2006

Crippen, Judge


Hennepin County District Court

File No. 04078312


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


William G. Clelland, Melissa A. Johnson, Carson, Clelland & Schreder, 6300 Shingle Creek Parkway, Suite 305, Brooklyn Center, MN 55430 (for appellant)


James L. Berg, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Hudson, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            The state disputes the postconviction court’s vacation of respondent’s misdemeanor plea one year after the plea was accepted.  Because respondent’s petition was untimely and failed to demonstrate a manifest injustice, the postconviction court abused its discretion, and we reverse its decision.


            On December 14, 2004, respondent Brian Antos appeared pro se and pleaded guilty to misdemeanor domestic assault.  His petition to enter a plea of guilty, duly signed, states that he makes no claim of innocence to the domestic assault charge and that he understands he has a right to an attorney.  The petition also states that respondent understands that by pleading guilty he waives his constitutional rights to trial by jury, to confront witnesses against him, to challenge the admissibility of evidence, to remain silent or testify on his own behalf, and to subpoena witnesses.  Finally, the petition states that respondent enters his guilty plea voluntarily.

            During the guilty plea colloquy, the presiding judge asked respondent if he was comfortable entering his plea without an attorney, whether he understood he had a right to an attorney, and whether he was waiving that right voluntarily.  Respondent answered affirmatively.  The judge also asked respondent what made him guilty of domestic assault.  In his own words, respondent said he was guilty because he and his girlfriend got into an argument, he grabbed her and pushed her down off the bed, and she fell to the floor.  The judge accepted the plea and sentenced respondent.

            As a part of respondent’s sentence, he was required to undergo a domestic abuse assessment, follow all probation recommendations, and remain law abiding.  All of these requirements were communicated to respondent in the plea petition that he read and signed, and by the judge during the plea hearing.  Seven months after respondent pleaded guilty, the trial court issued an order for respondent’s arrest and detention because respondent did not attend scheduled probation appointments or domestic abuse classes consistent with his probation conditions. 

            Two months later, respondent was arrested pursuant to the order.  After his arrest, he served the prosecutor with a motion to withdraw his guilty plea.  On December 20, 2005, one year after respondent’s plea was entered, the postconviction court held a hearing to determine whether the plea should be withdrawn.  At the hearing, respondent testified that he was unrepresented during the original plea hearing and that he was never told he could claim self-defense.  Respondent also testified that no one told him he was required to complete a 16-week domestic abuse program.  But on cross examination respondent conceded that the petition to plead guilty clearly required respondent to “complete all programs.” 

            At the conclusion of the hearing, the postconviction judge vacated respondent’s plea from the bench.  The court did not address the timeliness of respondent’s motion.  On the merits of the motion, the court expressed concern about the generality of the original requirement that appellant complete all programs and all recommendations of probation staff.  The judge also said, “I don’t think [respondent] knowingly waived his rights to an attorney to explain that he . . . may have had a valid defense of self-defense.” 

            On appeal, the state argues that respondent’s petition to withdraw his plea was untimely and did not show manifest injustice requiring vacation of the plea.


             “We review a district court’s decision to hear a motion for plea withdrawal for an abuse of discretion.”  State v. Byron, 683 N.W.2d 317, 321 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).  Plea withdrawal after sentencing is proper “upon timely motion.”  Minn. R. Crim. P. 15.05, subd. 1.

            The rules do not provide for, and the courts have not established, a firm time limit governing motions for plea withdrawal.  Byron, 683 N.W.2d at 321.  Despite this latitude, “[c]riminal defendants do not have an absolute right to withdraw a guilty plea. . . .”  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998) (quotation omitted).  We must consider several factors to determine whether a criminal defendant’s motion to withdraw a plea is timely, including:  (1) the district court’s interest in preserving the finality of convictions; (2) the defendant’s diligence in seeking withdrawal; and (3) the prejudice to the state’s case caused by the delay.  Byron, 683 N.W.2d at 321.

            Here, the judicial interest in the finality of convictions weighs in favor of appellant.  Respondent filed his motion to withdraw his plea one year after sentencing and sought to withdraw his plea only after he was arrested for failing to fulfill the terms of his probation.  Allowing a defendant to withdraw his plea after he violates the terms of his probation undermines the court’s interest in the finality of convictions by encouraging defendants to seek withdrawal to escape the consequences of probation violations. 

            Respondent, who does not otherwise explain his delay, claims withdrawal is proper because he did not know earlier that he could assert a self-defense claim, and because he did not know he was required to complete a 16-week domestic abuse program.  But the factual basis of respondent’s self-defense claim was fully known at the time of the plea.  Additionally, the record indicates that respondent knew the specific parameters of his domestic abuse programming requirements sometime in April, if not earlier.  Respondent did not seek to withdraw his plea at that time or five months later when he was terminated from the program for excessive absences.  Respondent did not diligently seek withdrawal of his plea.

            Relying primarily on the first two Byron factors, the judicial interest in finality and the defendant’s diligence, and noting the inherent prejudice to the state when forced to prosecute the domestic assault case a year after the charges, we conclude that the postconviction court abused its discretion by finding respondent’s motion to withdraw his plea was timely. 

            Because the motion was untimely, we have no occasion to fully explore the merits of the district court’s concerns about the specificity of original probation conditions.   But, in the interests of justice, we will review the court’s determination that appellant had not adequately waived his right to counsel, and was, therefore, entitled to withdrawal of his guilty plea. 

            When examining a plea withdrawal, legal issues are reviewed de novo.  Byron, 683 N.W.2d at 322.  The district court must allow withdrawal of a guilty plea when the defendant’s motion is timely and “withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1.  “A manifest injustice occurs when a guilty plea is not accurate, voluntary, [or] intelligent.”  Alanis, 583 N.W.2d at 577.  A defendant’s guilty plea must be intelligent “to insure that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.”  Kaiser v. State, 641 N.W.2d, 900, 903 (Minn. 2002) (quotation omitted). 

            The postconviction court observed that respondent was unrepresented at the plea hearing and not informed of his possible self-defense claim.  Minn. R. Crim. P. 15.02 governs the acceptance of misdemeanor pleas.  The rule does not require the court to advise defendants of their possible defenses, but it does require the court to inform defendants of their right to the assistance of counsel.  Defendants must make a knowing and intelligent waiver of their right to counsel on the record.  State v. Nordstrom, 331 N.W.2d 901, 904 (Minn. 1983).

            The sentencing judge asked respondent if he was comfortable appearing pro se, whether he understood that he had a right to counsel, and, if so, whether he was waiving that right.  Respondent replied affirmatively.  The judge also asked respondent if he had a “clear head,” whether the plea was voluntary, and again whether he was waiving his right to counsel.  Respondent replied affirmatively.  Moreover, the plea petition expressly informed respondent of his right to counsel, and it informed him that by signing the petition he was waiving that right.  The trial court’s colloquy was adequate to satisfy the rule 15.02 requirements.

            Because respondent’s motion to withdraw his guilty plea was not timely, we conclude that the postconviction court abused its discretion by vacating respondent’s plea.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.